203 U.S.

56
27 S.Ct. 17
51 L.Ed. 88

CHARLES S. LANDRAM and John A. Broaddus, Executors of

Constance K. Vertner, Deceased, and Lillie K. Vertner, Appts.,
v.
GABRIELLA K. JORDAN.
No. 179.
Argued October 9, 1906.
Decided October 22, 1906.

Messrs. John J. Hemphill and James Hemphill for appellants.

[Argument of Counsel from pages 56-59 intentionally omitted]
Messrs. Charles F. Wilson and Frank W. Hackett for appellee.
Mr. Frank Sprigg Perry for Mary B. Kearney.
[Argument of Counsel intentionally omitted]
Mr. Justice Holmes delivered the opinion of the court:

This is an appeal from a decree of the court of appeals of the District of

Columbia affirming a decree of the supreme court upon a bill of review brought
by Gabriella K. Jordan, the appellee. The decree under review was rendered in
a suit for the construction of the will of Thomas Kearney and for the
determination of the validity of a trust created by it, so far as the same
concerned land in the District of Columbia. That decree declared the trust bad
as attempting to create a perpetuity. Under the bill of review the decree was
modified, on demurrer, to the extent of the interest of Gabriella K. Jordan, and
the trust was declared valid as to her. 25 App. D. C. 291. The executors of the
testator's heirs and a daughter of the said heir appealed to this court.

Thomas Kearney died on July 5, 1896. The will disposes of land in various
places. In item 3 it enumerates the testator's property in Washington. In item 5 it

devises this and other property upon a trust to be continued until January 1,
1928, and there and elsewhere, with the following exception, makes a fund
from the Washington rents and profits to be disposed of as directed in the will.
Item 6 is as follows:
3

'I hereby authorize and direct that my said trustee shall, during the natural life
of my beloved niece, Gabriella K. Jordan, pay over to her regularly each month,
as soon as collected, all rents and revenues collected or derived from that
certain property described in the third item hereof as lot No. 611 'M' Street, N.
W., Washington, D. C.; but, in case said rents and revenues shall at any time be
less than the sum of $40 for any one or more months, then my said trustees are
hereby authorized and instructed to add to the sum so collected a sufficient
amount to make the said amount of $40 for each and every month; it being my
desire that she shall have a regular income of at least $40 per month, and that
the same shall be paid over to her monthly; but if the income derived from said
premises shall amount to a sum in excess of $40 per month, she shall have the
whole thereof.' (Rec. 10.)

Item 7 directs the trustee to let all the Washington property, except 611 M
street, and out of the rents to pay $90 a month to the testator's daughter,
Constance K. Vertner, as ordered in item 5; the residue, so far as necessary, to
be applied to the support and education of her three children, named, with
further provisions. Item 8 gives the remainder in fee of 611 M street to the
testator's grandson, provided that if Gabriella Jordan dies before January 1,
1928, he shall only receive the rents and profits, and if she dies before the
grandson reaches the age of twenty-two the rents shall be disposed of as
provided in item 7 as to other Washington property. In item 21, the testator, 'for
fear that there may be some difficulty in construing the different provisions' of
the will, states his intention that all the money arising from the Washington
rents, 'except that which is to go to Gabriella K. Jordan, shall be placed in a
common fund for the payment (1) of taxes, insurance and repairs on said
property and of the premises at Luray, Virginia; (2) of (90) ninety dollars per
month to my said daughter, Constance K. Vertner. during her natural life; (3)
for the support, education, and maintenance of my said three Vertner
grandchildren until Lillie K. Vertner shall have arrived at the age of nineteen
years, and until Edmund K. and Thomas K. shall have arrived at the age of
twenty-two years respectively.'

The persons in whose favor were made the provisions which were adjudged
bad were one of the testator's heirs, his daughter, Constance K. Vertner, and the
children of Constance. The daughter pleaded that the other heir, Edmund
Kearney, also provided for in the will, died, leaving her his heir, that the trust

was bad, and, by implication, that she was entitled to the property which it
embraced. She now is dead. By the original decree the whole trust fund,
including that given to Gabriella Jordan, went to the testator's heirs as property
undisposed of by the will. The only person dissatisfied with that decree was
Gabriella Jordan, and, on the other hand, the executors and the children of
Constance are the only appellants from the decree on review. According to the
rule that has been laid down in this court, Gabriella, as she did not appeal,
cannot go beyond supporting the decree and opposing every assignment of
error. Mt. Pleasant v. Beckwith, 100 U. S. 514, 527, 25 L. ed. 699, 702; The
Stephen Morgan (The Stephen Morgan v. Good) 94 U. S. 599, 24 L. ed. 266;
Chittenden v. Brewster, 2 Wall. 191, 196, 17 L. ed. 839, 841; Field v. Barber
Asphalt Paving Co. 194 U. S. 618, 621, 48 L. ed. 1142, 1153, 24 Sup. Ct. Rep.
784. We assume this rule to be correct. Although her counsel attempted to argue
the validity of the trust as a whole, and other questions, we assume, without
deciding, the decree to be unimpeachable and right except so far as appealed
from. Therefore we shall confine ourselves to considering whether the gift to
Gabriella is so intimately connected with the failing scheme as to fail with it.
6

It would be a strong thing to say that we gather from this will an intent that, if
the trust so far as it concerns the testatator's descendants should fail because
they prefer to take the property by intestacy free from the limitations of the
will, therefore the one gift outside his family should be defeated also. The trust
is not a metaphysical entity or a Prince Rupert's drop which flies to pieces if
broken in any part. It is a provision to benefit descendants and a niece. There is
no general principle by which the benefits must stand or fall together. It is true
that all the Washington property was given to the trustees in one clause and that
a part of the scheme in favor of the testator's grandchildren was the creation of
a fund from the rents. But, as is stated in item 21, 611 M street was excepted
from the scheme, and the whole income of this lot, or, in other words, an
equitable estate in the specified land, is given to Gabriella Jordan for life by
item 6. If that were all we see no reason for a doubt that that gift would be
good, whether the gift to the other beneficiaries were good or not. The fact that
the testator's daughter takes all the rest of the property, instead of her children
getting a postponed interest in a part, is no ground for denying to the niece the
life estate given to her in an identified and excepted piece of land. It does not
make the case any worse that a part of the property thus going to the testator's
daughter is the remainder in the estate given to his niece.

The appellants lay hold of the instructions to the trustees to add to the rents
enough to make Gabriella's income up to $40 a month, and argue as if the gift
were in substance only a gift of $40 a month from a fund that cannot be
established. Such is not the fact. The gift is primarily and in any event a gift of

the income of 611 M street. But whatever may be the fate of the rest of the trust
we see nothing to hinder the trustees from keeping the income up to $40 from
the other property devised to them. Of course, they could not derive income
from property not included in the trust, and only the property included is
charged with the liability. The decree may be modified by inserting after the
words 'against his entire estate' the words 'in the District of Columbia.'
8

It is objected in argument, although not in the pleadings, that the widow of

Edmund Kearney has a right of dower in the Washington estate which
descended to him, and that she should have been made party to the bill of
review. The fact of the widow's existence does not appear of record as against
the appellees, and we agree with the court of appeals that the objection is made
too late.

Decree affirmed.